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Family struggles to care for daughter against cap on malpractice awards

Evansville Courier & Press (IN) - 12/27/2015

Dec. 26--Juliann Bobbitt is not an average sixth-grader.

For one thing, she practically vibrates with enthusiasm when asked if she had a good day at school.

"She loves school. She gets mad at me if there is a snow day and the schools are canceled," said Crystal Bobbitt, her mother.

That is all the more remarkable because Juliann was born quadriplegic, with spastic athetoid cerebral palsy. She is wheelchair-bound, unable to use her arms and legs because of the condition, but she also cannot speak and has difficulty swallowing.

"She is very social. She likes to be around people," Crystal said.

Juliann must be fed through a tube to her stomach. Swallowing is difficult and can cause her to aspirate food into her lungs.

"She can't swallow anything except for the occasional little spoon of ice cream or whipped cream her daddy gives her," Crystal said. "She is definitely daddy's girl."

Communication largely happens through body language, especially her eyes.

"We do have ways of communicating and she is very smart. But she is also stubborn," Crystal said.

For instance, Juliann might answer a question by looking at one object to indicate one choice and a different object to indicate another choice, she said.

Her condition is the result of her early birth in September 2003.

Juliann's older brother, Ethan, 14, had a low platelet count at his birth, causing a 10-day stay in the neonatal intensive care unit for a blood transfusion and plasma transfer. It was the result of a rare white blood cell condition in which the parents' white blood cells aren't compatible with each other, Crystal said.

When she became pregnant again, Crystal said she was sent to Dr. Mureena Turnquest-Wells for evaluation. She said she was placed in a study and received treatments to keep her platelet count up.

At 33 weeks into her pregnancy, Crystal underwent a procedure that was supposed to help doctors decide if she would need a C-section.

The procedure involved inserting a needle into her umbilical cord, Crystal said, an operation that was rare in Evansville. Because of that, she said she was supposed to undergo the operation under general anesthetic and other physicians were invited to observe.

But something went wrong.

"The next thing I knew, I was waking up in a lot of pain. I heard the nurse say she weighs five pounds one ounce and my husband came over and said we had a baby girl," Crystal said.

It would be eight days before mother could hold daughter.

"Later, we found out why, but initially the doctor kept telling us, 'I don't know what happened,' " Crystal said. "And that was very frustrating."

The Bobbitts remained in the dark until filing a lawsuit in 2005.

According to the Bobbitts' complaint, the fetal blood sampling procedure was done with inadequate staffing and without continuous ultrasound guidance. The lawsuit accused medical staff of not stopping the elective procedure after multiple unsuccessful attempts to get into the umbilical cord.

The complaint also alleged Turnquest-Wells failed to recognize fetal distress and deliver Juliann swiftly enough, and that she did not obtain informed consent beforehand.

After a 10-day civil trial, a jury found in favor of the Bobbitts and against St. Mary's Medical Center and Turnquest-Wells.

Although the jury awarded $15 million to Crystal and her husband, Jamie Bobbitt, the family hasn't received any of the money. When they do, it could be just a fraction of the original amount, because Indiana's Medical Malpractice Act caps damage awards at $1,250,000.

Indiana was the first state to pass medical malpractice reform legislation in 1975, according to the Indiana State Medical Association. More than half of states now have laws limiting the amount of money a medical malpractice plaintiff can receive. However, most of those cap non-economic damages only.

"Indiana has a cap on all damages, including non-economic damages. So, for the Bobbitts the cap applies to everything, including all of Juliann's past and future medical expenses," said Terry Noffsinger, one of several attorneys representing the Bobbitts.

Under Indiana's law, doctors are only responsible for the first $250,000 in damages to any patient for each act of malpractice, but no more than $750,000 total per year. The state's Patient Compensation Fund pays any excess, up to $1 million.

That's significant for the Bobbitt family, which faces a lifetime of medical costs for Juliann and mounting bills even though both work full-time.

Noffsinger said a life care planner hired for the malpractice trial determined $8 million to $10 million would be needed to care for Juliann.

"I get so frustrated with the system. There's always these delays," Crystal Bobbitt said.

Attorneys for the Bobbitts are challenging whether the state's malpractice damage cap is constitutional, and also whether St. Mary's qualifies for protection under Indiana'sPatient Compensation Fund -- which would pay the majority of any award the Bobbitts receive.

St. Mary's attorneys denied the lawsuit's claims. Likewise, the hospital contends that it is qualified to be covered by the state compensation fund.

"St. Mary's has been and is currently qualified to receive coverage under Indiana'sPatient Compensation Fund of the Indiana Medical Act. This is an active case, so we will refrain from making any comments publicly," said St. Mary's spokesman Randy Capehart.

A win under either of those scenarios could result in more money for the Bobbitts, although higher courts are likely to be involved before the matter is resolved. If St. Mary's is determined not to have done what is necessary to be covered by the state, the hospital will bear the cost of paying the Bobbitts.

Noffsinger said the family's legal team is contesting whether St. Mary's is properly qualified under the Patient's Compensation Fund. Final legal briefs on that are due in early January.

"If we get any kind of settlement, we have to pay Medicaid back. We owe them over a half-million dollars," Crystal Bobbitt said.

She said Medicaid waived its income requirements so that it can serve as secondary insurance for Juliann, covering expenses such as office co-payments, but it is conditional on repaying Medicaid when possible.

Although Juliann attends Glenwood Leadership Academy, affording qualified special needs caregivers to help after school has been difficult, Crystal Bobbitt said.

Despite the struggles, they remain a strong family.

"She's a blessing. I really can't think of her any other way. She lights up a room with her smile," Crystal said.

Noffsinger said he hopes the Bobbitt's case will the impetus to at least raise, if not abolish, Indiana's medical malpractice damage award cap.

Noffsinger said since 2003 courts have struck down medical malpractice damage cap laws in eight states: Florida, Alabama, Georgia, Illinois, Missouri, New Hampshire, Oregon and Washington.

Supporters argue that raising the cap would mean more lawsuits, leading to higher medical malpractice insurance premiums for doctors and higher costs for patients. However, Noffsinger said that argument has never been tested in Indiana's courts.

The Indiana Supreme Court last addressed the constitutionality of the Medical Malpractice Act in 1980.

"That was 35 years ago, and we now think there if revisited, there is evidence to show that the conclusions of the court then would not be the same as today," Noffsinger said.

Opponents argue damage award caps violate the Fourteenth Amendment's equal protection clause that no state can "deny to any person within its jurisdiction the equal protection of the laws" -- something the Indiana's Supreme Court hasn't found so far.


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